Turkey: The Turkish Trademark System: The Essentials

Even though Turkey is a party to international conventions and
has harmonised its trademark laws with those of the EU, there are
certain aspects and practices distinctive to Turkish trademark
law.

Existence of an earlier trademark is an absolute ground for
refusal

Contrary to many other jurisdictions, trademark similarity is
considered to be an absolute ground for provisional refusal in
Turkey. The Turkish Patent Institute (TPI) oversees the trademark
application process. The TPI's role is to maintain public order
and protect the public from confusion between marks. The TPI also
prevents registrations of inherently unprotectable marks.

When the TPI receives a trademark application, it conducts a
search of registered trademarks to determine whether there are any
prior trademarks which are identical to the application, or
confusingly similar. If the TPI finds an identical or confusingly
similar mark, it will reject the application and cite the mark(s)
which form the basis of the rejection. Even if the cited mark's
owner consents to the later mark being registered, it is not
possible to overcome the TPI's provisional refusal
decision.

Consequently, some trademarks cannot obtain registration in
Turkey because they do not pass the TPI's examination on
absolute grounds. This is despite the fact that the trademark would
not meet oppositions if published.

Use in commerce or intent to use are not a requirement at
application stage

Contrary to some jurisdictions, trademark applicants in Turkey
are not required to prove their use of the mark in commerce at the
application stage and are not asked to show their intention to use
the mark in this way. Similarly, opponents are not required to
demonstrate their use of the mark which they are opposing, even if
the five-year grace period has expired.

Similar to many other jurisdictions, Turkish law requires
'use in commerce' in order to keep a trademark's
registration alive after an initial five-year grace period.
However, the trademark holder is required to prove its use in
commerce only when a third party initiates a non-use action before
the first instance court.

This legal arrangement means that the TPI does not oversee the
use of the trademark before or after the non-use grace period. The
arrangement also means that a registered trademark will effectively
remain alive unless a third party successfully initiates a lawsuit
for the trademark's cancellation based on non-use.

Consent letters or sister company arguments are not
acceptable

In many jurisdictions, consent letters, co-existence agreements
and sister company arrangements are possible avenues to overcome a
local authority's provisional refusal decision based on earlier
registration.

As a result, applicants whose trademarks are provisionally
refused by the TPI based on a prior registration in Turkey will
often explore the acceptability of such an arrangement. However, in
Turkey, consent letters, co-existence agreements and sister company
arrangements are not capable of overcoming a provisional refusal by
the TPI. Even if the prior registration holder consents to the
trademark, the TPI will not cancel its provisional refusal
decision.

One possible solution for applicants when the TPI has
provisionally refused their trademark application is to consider
buying the registered mark or obtaining a licence from the
trademark holder.

All the TPI's deadlines are strict and cannot be
extended

Turkish trademark law is regulated by a Decree Law and its
regulation. All the relevant deadlines in this legislation are
strict, with no processes available for the parties to extend them.
These deadlines include oppositions, appeals, responses and all
types of office action. Failing to meet official deadlines often
results in parties experiencing significant losses of rights.
Therefore, it is very important for parties to pay close attention
to the TPI's deadlines.

Compensation of the costs and the expenses

Contrary to some jurisdictions, when a trademark application or
an opposition is rejected in Turkey, the applicant or opponent is
not required to pay the other party's fees. When the TPI
rejects a trademark application or opposition, the party's only
monetary loss will be the amount it paid for the application.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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